Today the Commercial Court gave judgment striking out a claim arising out of an alleged contract in 2011 for the provision of consulting services by the claimant, an offshore vehicle, to the defendant, Mr Mark Bamford. The claimant had allegedly contracted to provide consulting services to the defendant in relation to a possible sale of the JCB business in 2012. By at least 2015 the defendant had denied that the alleged contract was binding, and the claimant had purported to accept what it described as the repudiation. The claimant issued proceedings in 2021, claiming that it was entitled to a fee equivalent to 2% of the value of the JCB group, or damages for the loss of the chance to earn that fee, or a sum to “make whole” the claimant for the work it had allegedly done between 2011 and 2014.
The defendant applied to strike the claim out (or obtain summary judgment) on the basis that the claim was unsustainable as a matter of contractual interpretation, even leaving aside potential fact-sensitive defences such as limitation or whether the alleged contract had ever been intended to be legally binding. The claimant’s argument was that the success fee was payable under the contract in the event not only of a sale of the JCB group, but in the event of any restructuring of the JCB group or the trusts which indirectly own the group, or that (if no such restructuring ever took place) the claimant would be paid for its services on the basis of a reasonable fee for the time spent. If none of those terms was arguable, the claim could not succeed, because it was common ground that the JCB group had not been sold and the claimant’s allegation (at its highest) was that some other form of restructuring had taken place at some stage. The claimant pointed to a number of elements of the alleged factual background which it contended supported its reading of the contractual document as having that meaning.
Mr Justice Jacobs analysed the alleged contractual document, against the relevant factual background relied on by the claimant. He concluded that none of the terms necessary to support the claim was viable as a matter either of interpretation or implication of terms. In those circumstances, it was possible to conclude that the claim should be struck out even though there were a large number of factual questions which the court could not resolve.
The judgment is a useful reminder that the court will be prepared to grasp the nettle and resolve a case on a summary basis, even where it may appear to have a significant factual hinterland, if a short and decisive point of law – including the construction of a contract – can be identified.
Laurence Rabinowitz QC and Alexander Polley QC, instructed by Slaughter and May, acted for the defendant.
The judgment can be found here.